Court Opinion Limits `Richard' Appeals

March 01, 1995|By Janan Hanna, Tribune Legal Affairs Writer.

Five weeks after ordering a nearly 4-year-old boy turned over to the biological father he has never met, the Illinois Supreme Court on Tuesday explained its decision in a lengthy opinion that significantly narrows the chances for a successful appeal to the U.S. Supreme Court.

In a 5-2 ruling, the justices rejected the adoptive parents' arguments that the child, known as "Richard," was entitled to a hearing to determine where it would be best for him to live. The justices also harshly criticized the parents for fighting to keep Richard from his biological father, Otakar Kirchner.

"It would be a grave injustice not only to Otakar Kirchner, but to all mothers, fathers and children to allow deceit, subterfuge and the erroneous rulings of two lower courts, together with the passage of time resulting from the Does' persistent and intransigent efforts," to dictate who the boy should live with, the justices said.

The law requiring the best-interest hearing, which was hastily passed by the General Assembly last year in an attempt to influence the case, could not be applied retroactively, the majority said in its 27-page opinion.

However, because the justices did not strike down the constitutionality of the law itself, it's unlikely that the adoptive parents, known as John and Jane Doe, could persuade the U.S. Supreme Court to hear the case, some legal experts said.

The nation's highest court is reluctant to decide matters of state adoption and custody law, especially where no pressing federal constitutional issue is at stake.

"It appears that the Illinois Supreme Court has tried to very carefully cabin its opinion . . . making it difficult for the U.S. Supreme Court to get involved," said Diane Geraghty, a professor of constitutional and childrens' law at Loyola University Chicago. "Adoption is a creature of state statute. Federal courts have been non-aggressive in their willingness to get involved."

The Does have raised Richard since he was 4 days old. At that time, the boy's mother, Daniela Janikova, consented to the adoption and told the father, Otakar Kirchner, that the child had died at birth. When Kirchner learned that the child was alive, he began the protracted court battle that ended in his favor for the first time in June 1994, when the justices invalidated the adoption.

Private negotiations to transfer custody have recently broken down, and Loren Heinemann, the attorney for Kirchner, warned Tuesday that his client is running out of patience and might soon take the child from the Does.

"The option of taking the child is becoming. . . . more realistic as each minute passes," Heinemann said. "And it's something that weighs very heavily on all of us. It's up to the Does to bring us off the brink."

The first Illinois Supreme Court ruling on the case prompted the passage of the Baby Richard Amendment to Illinois Adoption Act, which requires a hearing to determine where it would be best for a child to live in disputed adoptions. The General Assembly acted swiftly with the hopes of giving Richard a chance to remain in the only home he has known.

But the Illinois justices in Tuesday's opinion said attempts to apply the law to the Richard case violate the separation of powers between the judicial and legislative branches of government.

"This court has observed that the General Assembly is not a court of last resort and it may not attempt to retroactively apply new statutory language to annul a prior decision of this court," the justices said.

Chief Justice Michael A. Bilandic and Justices James D. Heiple, Charles E. Freeman, Moses W. Harrison II and John L. Nickels wrote the majority opinion. The opinion was released per curiam-for the whole court-with the author remaining unidentified.

In the majority opinion, the justices blasted the Does for refusing to turn the child over to Kirchner when he first expressed an interest in him six months after he was born.

In her dissent, which the majority characterized as "wrong in its assertions and wrong in its conclusions," McMorrow insisted that her colleagues were misstating the facts of the case to support its conclusion.

"I found no evidence in the record to support the repeated charges of `deceit,' `lies,' and `subterfuge' on the part of the Does and their attorney," McMorrow said.

She said that the Does had acted in accordance with the state law in their adoption of Richard. A state court trial judge, as well as an Illinois Appellate Court, sanctioned the Does' adoption of Richard prior to the Illinois Supreme Court ruling of June 16, 1993, which invalidated it, she noted.